Developments in Australian fisheries law: setting the law of the sea convention adrift?

14 Pages·2014·0.14 MB·English

by  Warwick Gullett

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Faculty of Law - Papers (Archive) Faculty of Business and Law
2004
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Warwick Gullett
University of Wollongong, [email protected]
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Gullett, Warwick: Developments in Australian fisheries law: setting the law of the sea convention adrift?
2004, 169-176.
https://ro.uow.edu.au/lawpapers/107
Research Online is the open access institutional repository for the University of Wollongong. For further information
contact the UOW Library: [email protected]
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Significant developments have recently occurred in the ongoing campaign by the Australian Government
to combat illegal foreign fishing in Australian waters, particularly against Patagonian toothfish poaching.
On 22 March 2004 significant amendments to Australia’s fisheries laws were passed by the
Commonwealth Parliament to improve regulatory efficiency and combat illegal foreign fishing in the
Australian Fishing Zone (AFZ). In addition, on 12 March 2004 the Federal Court of Australia delivered a
landmark decision in Olbers v Commonwealth of Australia (No 4) [2004] FCA 229 concerning the
automatic forfeiture of foreign vessels to the Commonwealth of Australia at the time when a fisheries
offence occurs rather than upon apprehension. It is argued that the Federal Court’s decision and the
amendments increase the disparity between measures Australia has adopted within its domestic legal
regime to deter illegal foreign fishing in the AFZ and its responsibilities under the UN Convention on the
Law of the Sea (LOSC).
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convention, adrift, developments, law, australian, sea, setting, fisheries
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Gullett, W, Developments in Australian fisheries law: setting the law of the sea convention adrift?,
Environmental and Planning Law Journal, 21(3), 2004, 169-176. Copyright Lawbook Co 2004.
This journal article is available at Research Online: https://ro.uow.edu.au/lawpapers/107
Editorial commentary
DEVELOPMENTS IN AUSTRALIAN FISHERIES LAW: SETTING THE LAW OF
THE SEA CONVENTION ADRIFT?
Significant developments have recently occurred in the ongoing campaign by the Australian
Government to combat illegal foreign fishing in Australian waters, particularly against Patagonian
toothfish poaching. On 22 March 2004 significant amendments to Australia’s fisheries laws were
passed by the Commonwealth Parliament to improve regulatory efficiency and combat illegal foreign
fishing in the Australian Fishing Zone (AFZ).1 In addition, on 12 March 2004 the Federal Court of
Australia delivered a landmark decision in Olbers v Commonwealth of Australia (No 4) [2004] FCA
229 concerning the automatic forfeiture of foreign vessels to the Commonwealth of Australia at the
time when a fisheries offence occurs rather than upon apprehension. It is argued that the Federal
Court’s decision and the amendments increase the disparity between measures Australia has adopted
within its domestic legal regime to deter illegal foreign fishing in the AFZ and its responsibilities
under the UN Convention on the Law of the Sea (LOSC).2
Fisheries Legislation Amendment (Compliance and Deterrence Measures and
Other Matters) Act 2004
The first amendment Act3 is aimed squarely at deterring illegal foreign fishers from operating in the
AFZ, particularly those who target the prized Patagonian toothfish in the AFZ surrounding Australia’s
territory of Heard and MacDonald Islands approximately 2,200 nautical miles southwest of Western
Australia. The amending Act increases the maximum penalty available under the Fisheries
Management Act 1991 (Cth) (FM Act) for foreign fishing offences committed in the AFZ with
respect to vessels over 24 metres from $550,000 to $825,000. For vessels of less than 24 metres (such
as the artisanal vessels often arrested in Australia’s northern waters), the maximum fine remains at
$550,000. The high prices that can be obtained for Patagonian toothfish and the difficulty of ensuring
compliance with domestic fisheries laws in remote areas combine to present a significant challenge for
Australia to deter illegal foreign fishing. In recent years Australia has bolstered its surveillance and
enforcement capabilities4 and has successfully apprehended a number of foreign vessels in the
Southern Ocean for alleged illegal fishing in the AFZ, although concern remains that the scale of
illegal fishing in the region means that many suspected illegal fishing vessels are not apprehended.
The most recent arrest was of the Uruguayan-flagged Maya V in January 2004. Australia incurs
significant costs to police these waters, especially for arrests that can only be effected after a “hot
pursuit”. In two recent cases Australia incurred expenses running into millions of dollars after
reportedly the longest hot pursuits in history. In 2001 Australia arrested the Togo-flagged South Tomi

1 Australia’s fishing laws are a complex mosaic of Commonwealth, State and Territory laws. A good general reference for
these laws is Haward M, “The Commonwealth in Australian fisheries management: 1955-1995” (1995) 2 Australasian
Journal of Natural Resources Law and Policy 313. The Fisheries Management Act 1991 (Cth) and Fisheries Administration
Act 1991 (Cth) establish the major Commonwealth fisheries laws, which, as a general rule of thumb (but with many
exceptions), apply to fisheries outside of the 3 nautical mile limit of State coastal waters and waters around Australia’s external
territories to the limit of the AFZ.
2 United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3; ATS 1994
No 31; ILM 21 p 1261 (entered into force for Australia and generally 16 November 1994). Significantly, the United States has
yet to ratify LOSC.
3 Received Royal Assent 1 April 2004; ss 1–3 effective as of 1 April 2004, Sch 1 on Proclamation or after six months.
4 In November 2003 Australia signed a treaty with France to improve cooperation in surveillance of suspected illegal fishing
vessels (“Treaty Between the Government of Australia and the Government of the French Republic on Cooperation in the
Maritime Areas Adjacent to the French Southern and Antarctic Territories (TAAF), Heard Island and the McDonald Islands”).
In December 2003 the Howard Government announced the allocation of additional funding to police remote fisheries
including the leasing of an ice-strengthened vessel with a deck-mounted machine gun to patrol areas of the AFZ in which
Patagonian toothfish are targeted. See Alexander Downer (Minister for Foreign Affairs) “Maritime agreement sends a strong
message to illegal fishing operators” (Press release, 24 November 2003) and Ian MacDonald (Minister for Fisheries)
“Permanent armed patrols to toughen border protection in Southern Ocean” (Press release, 17 December 2003).
(2004) 21 EPLJ 169 169 ©
Editorial commentary
after a 3,300 nautical mile hot pursuit, and in 2003 Australia arrested the Uruguayan-flagged Viarsa 1
after a hot pursuit of nearly 4,000 nautical miles.5
The amending Act attempts to recoup the expenses incurred in hot pursuits from the owners of
arrested foreign vessels. The Australian Fisheries Management Authority (AFMA), which administers
the FM Act, is given the authority to include in any bond amount set for the release of a detained
foreign vessel the reasonable costs of pursuit and apprehension of the vessel. The amending Act
defines “pursuit costs” as “costs reasonably incurred by or on behalf of the Commonwealth in respect
of pursuit activities conducted in respect of the boat”.6 This is further defined to include costs incurred
by governments of foreign countries that assist in the pursuit or apprehension of the vessel.7 Section
106L provides that costs will commence from the time the master of a boat fails to stop the boat in
accordance with a requirement that it do so and, as a result of that failure, pursuit activities are taken.
The debt stops accruing once the boat is brought to a designated “processing place”8 in Australia
(likely to be the nearest appropriate Australian port). AFMA is also authorised to develop regulations
to determine principles for calculating the costs incurred that are directly attributable to the pursuit.9
A process is provided for contesting the debt in the Federal Court on the grounds that either the vessel
was not used in an offence against the FM Act or that some or all of the costs were not reasonably
incurred. The burden of proof is placed on the Commonwealth to establish on the balance of
probabilities that pursuit costs are reasonable.10
The wording of the section to define pursuit costs as those “reasonably” incurred is intended to
ensure consistency with Australia’s obligation under LOSC to promptly release detained foreign
vessels upon the posting of a “reasonable bond or other security”.11 In December 2002 Australia
received a setback to its efforts to increase its deterrence measures for illegal foreign fishing when the
International Tribunal for the Law of the Sea (ITLOS) ruled that Australia had breached its prompt
release obligation when it set non-financial conditions for the release of the detained Russian fishing
vessel Volga.12 The amending Act is a bold attempt to further deter illegal foreign fishing and cover
part of the cost of monitoring, control and surveillance operations by providing a mechanism to
increase the sums that can be sought from foreign operators in a manner consistent with LOSC.
However, it is a moot point whether the new section is consistent with LOSC (or rather, whether
ITLOS would be prepared to consider that it is). The issue of recovering pursuit costs has not been
tested in any of the prompt release cases heard by ITLOS and it was not an issue considered during
the drafting process of LOSC. If, for example, Australia seeks to recover pursuit costs from the owner
of an arrested foreign vessel in the order of A$4 to $5 million, as envisaged by the Minister for
Fisheries, Senator Ian MacDonald,13 this will undoubtedly be tested in ITLOS. ITLOS has not shown
itself to be sympathetic to novel interpretations of the bond requirement in LOSC, despite increasing

5 See Molenaar EJ, “Multilateral hot pursuit and illegal fishing in the Southern Ocean: the pursuits of the Viarsa 1 and the
South Tomi” (2004) 19 International Journal of Marine and Coastal Law (forthcoming) and Rothwell DR and Stephens T,
“Illegal Southern Ocean fishing and prompt release: balancing coastal and flag state rights and interests” (2004) 53
International and Comparative Law Quarterly 155.
6 Fisheries Legislation Amendment (Compliance and Deterrence Measures and Other Matters) Act 2004, s 106J.
7 Fisheries Legislation Amendment (Compliance and Deterrence Measures and Other Matters) Act 2004, s 106J. This is a
relatively frequent occurrence. In recent years France, South Africa and the United Kingdom have assisted Australian
government vessels to arrest foreign fishing boats suspected of illegal fishing activity in the AFZ.
8 Fisheries Legislation Amendment (Compliance and Deterrence Measures and Other Matters) Act 2004, ss 106J and
106L(1)(c).
9 Fisheries Legislation Amendment (Compliance and Deterrence Measures and Other Matters) Act 2004, s 106K.
10 Fisheries Legislation Amendment (Compliance and Deterrence Measures and Other Matters) Act 2004, s 106S.
11 LOSC, Art 73(2).
12 The “Volga” Case (Russian Federation v Australia) (Prompt Release) (Judgment) (2002) ITLOS Case No 11. The
non-financial conditions set included the requirements that information be provided about the beneficial owners of the vessel
and that the vessel carry a vessel monitoring system. See Gullett W, “Prompt release procedures and the challenge for fisheries
law enforcement: the judgment of the International Tribunal for the Law of the Sea in the Volga Case (Russian Federation v
Australia)” (2003) 31 FLR 395.
13 Parliament of Australia Senate Hansard, 10 February 2004, 19609.
© 170 (2004) 21 EPLJ 169
Editorial commentary
awareness in the fisheries policy community that more rigorous measures are needed to combat the
growing problem of illegal, unreported and unregulated (IUU) fishing.14 As such, it remains to be seen
whether ITLOS will allow pursuit costs to fall within the definition of “reasonable bond” in LOSC,
and if so, whether the manner in which Australia calculates pursuits costs is also “reasonable”. ITLOS
would certainly strike down sums that are excessive, not proportionate to the offence or designed
simply to prevent the vessel from ever being released.15
Aside from doubt about the legality of this provision under present international law, there are
practical limitations in enforcing the payment of such debts against owners of foreign vessels. When
vessels are arrested, it is their senior crew (and unusually in the case of the Maya V, the entire crew),16
who are charged with fisheries offences under domestic law. However, the measures that can be
adopted to deter foreign boat owners from engaging in illegal foreign fishing is effectively limited to
depriving them of the use of their vessels. The bond that can now be set is likely in many cases to
greatly exceed the value of detained vessels. In these circumstances, foreign boat owners will probably
simply abandon their vessels and their crew. They would only contemplate paying such a bond if it
were less than the cost associated with lost fishing time and purchasing, equipping and recrewing a
new vessel.
The amending Act also expands AFMA’s ability to use its directional power as the principal tool
to introduce new fisheries management measures for fisheries for which a Plan of Management
currently does not exist. The current method for introducing management measures for such fisheries
is a cumbersome indirect process of licence or permit condition variation. The ability to issue
directions for particular fisheries enables management measures to be introduced quickly when
exigencies arise. A concern for the fishing industry is that no consequential amendment has been made
to s 165 of the FM Act to allow recourse to the Administrative Appeals Tribunal (AAT) for fishing
concession holders aggrieved by the effects of direction notices. The majority of AFMA decisions
under the FM Act are reviewable by the AAT and in fact AFMA regularly faces challenges to its
decisions in the AAT.17 The significance of the amendment is that it extends the directional power to
all fisheries – most of which do not currently have a Plan of Management in place. As such, the ability
for fishers to seek merits review of new regulations which affect their fishing operations (such as area
conditions or closing or partially closing a fishery) has been reduced significantly. Although direction
notices are disallowable instruments and they must pass through parliamentary scrutiny, to date no
fisheries direction notices have been disallowed by parliament.
Fisheries Legislation Amendment (High Seas Fishing Activities and Other
Matters) Act 2004
The second amending Act18 provides the necessary amendments to the FM Act and the Fisheries
Administration Act 1991 (Cth) (FA Act) to enable Australia finally to formally accept the 1993
United Nations Food and Agriculture Organization’s Agreement to Promote Compliance with
International Conservation and Management Measures by Fishing Vessels on the High Seas (the
“Compliance Agreement”).19 In 2003 the Joint Standing Committee on Treaties20 recommended that

14 See, for example, Bray K, “Illegal, unreported and unregulated (IUU) fishing” in Nordquist MH and Moore JN (eds),
Current fisheries issues and the Food and Agricultural Organization of the United Nations (Kluwer Law International, 2000)
115.
15 See The “Monte Confurco” Case (Seychelles v France) (Prompt Release) (Judgment) (2000) ITLOS Case No 6, para 73.
In this case, ITLOS reduced the bond amount set by France for the release of the Seychelles-flagged vessel by more than two
thirds.
16 AFMA, “Entire crew of Maya V charged with illegal fishing” (Press release, 12 February 2004).
17 See, for example, Gullett W, Paterson C and Fisher E, “Substantive precautionary decision-making: the Australian Fisheries
Management Authority’s ‘lawful pursuit’ of the precautionary principle” (2001) 7 Australasian Journal of Natural Resources
Law and Policy 95.
18 Received Royal Assent 2 April 2004; ss 1-3 effective as of 2 April 2004; Schs 1 and 2 on Proclamation but not before the
Compliance Agreement enters into force for Australia, or after six months.
19 Entered into force 24 April 2003.
(2004) 21 EPLJ 169 171 ©
Editorial commentary
Australia accept the Compliance Agreement and the government has indicated that it will sign the
Agreement now that the Act has passed through Parliament.21 The amending Act gives effect to
obligations under the Compliance Agreement, principally in relation to licensing and supervision of
Australian-flagged vessels for high seas fishing and the requirement that a register is maintained of
vessels authorised to fish on the high seas. The Compliance Agreement aims to curtail the practice of
reflagging vessels that have had their fishing permits cancelled or suspended in their original country
for noncompliance with international fisheries conservation measures. Reflagging enables fishing
operators to avoid the consequences of fishing permit cancellation by seeking new fishing permits in
another country. This is typically undertaken in “flag of convenience” countries (perhaps better
termed “flag of noncompliance” countries)22 which either do not cooperate with international
conservation measures or are unable to control the high seas fishing activities of their vessels. The
amending Act provides that AFMA is precluded from licensing such vessels subject to two exceptions
contained in the Compliance Agreement.23 First, AFMA can grant a person a high seas fishing
concession with respect to an Australian-flagged vessel that had previously received a suspension or
cancellation of fishing authority in another country if the person satisfies AFMA that the owner or
operator of the vessel that received the suspension or cancellation no longer has control of the vessel
or a legal or financial interest in it. Second, AFMA can grant a fishing concession if it is satisfied that
the grant “will not be likely to undermine international conservation and management measures”.24
Just as in the case of the previous amending Act, no consequential amendment is made to s 165 of the
FM Act. As such, appeal to the AAT is unavailable for decisions made under the new provisions.
A person who, for example, has sought and been denied a high seas fishing concession due to an
allegation that the vessel had previously had its authorisation for high seas fishing from another
country suspended will be unable to seek merits review of the decision. However, the lack of recourse
to the AAT is unlikely to be a problem in practice because Australia is not a flag of convenience
country and it is thus unlikely that operators of such vessels will choose to register them in Australia.
The second amending Act also provides various miscellaneous amendments aimed at improving
the operating efficiency of AFMA. Most notable is the increase of powers of officers under the FM
Act (including members of the Federal Police, Customs and Defence) to stop and detain vehicles and
aircraft in certain circumstances without the consent of the owner or a warrant.25 Senator Ian
MacDonald justified this broadening of powers on the increasing use of output controls to manage
fisheries resources. The principal output control used – fishing quotas – requires monitoring of the
unloading of fish from vessels and the transportation of catch. The power would thus apply where an
officer believes a vehicle may be carrying fish landed in contravention of the FM Act or without
proper documentation in a location or in circumstances where a delay in obtaining the warrant would
frustrate its execution. Nevertheless, the Minister stated that the power “will be used only in very
limited circumstances”,26 in part because of the ability in many circumstances to obtain warrants
quickly by electronic means.
Another important aspect of the second amending Act is the reclassification of “charter fishing”
from commercial to recreational fishing to enable it to be managed generally at the State level rather
than at the federal level. This amendment was prompted by the conclusion in the 2003 Review of
Commonwealth Fisheries Policy that the Commonwealth arrange for the day-to-day management of

20 Parliament of Australia, Joint Standing Committee on Treaties, Agreement to Promote Compliance with International
Conservation and Management Measures by Fishing Vessels on the High Seas, done at Rome on 24 November 1993:
National Interest Analysis.
21 Parliament of Australia Senate Hansard, 11 February 2004, 19893.
22 Molenaar EJ, “Participation, allocation and unregulated fishing: the practice of regional fisheries management
organisations” (2003) 18 International Journal of Marine and Coastal Law 457 at 461.
23 Compliance Agreement, Art III(5)(c)(d).
24 Fisheries Legislation Amendment (High Seas Fishing Activities and Other Matters) Act 2004, s 16B(5).
25 Fisheries Legislation Amendment (High Seas Fishing Activities and Other Matters) Act 2004, s 84(1AB).
26 Parliament of Australia Senate Hansard, 11 February 2004, 19901.
© 172 (2004) 21 EPLJ 169
Editorial commentary
charter fisheries to be undertaken by the States and the Northern Territory.27 Two matters of concern
are that there is no requirement for charter boat operators to provide catch data to AFMA and a
number of States do not presently have laws regulating charter fishing.28 Charter fishing has emerged
as another area in fisheries management that shows that the Offshore Constitutional Settlement (1979-
1980) (OCS) has not provided the final resolution to all fisheries jurisdiction issues. Another area of
difficulty is the Commonwealth’s authority to manage some targeted species (such as gummy and
school shark) to the high water mark. This overlaps with State jurisdiction, most notably within areas
proclaimed under State law as marine protected areas in which commercial fishing is prohibited. The
three nautical mile limit of State jurisdiction granted by the OCS continues to present a challenge to
drafters of marine resource management legislation.
Olbers v Commonwealth of Australia (No 4) [2004] FCA 229
Olbers v Commonwealth of Australia (No 4) [2004] FCA 229 is the latest in a series of court cases
concerning Australia’s arrest of the Russian vessel Volga in the area adjacent to the AFZ surrounding
Heard and MacDonald Islands on 7 February 2002 for alleged illegal fishing within the AFZ. Previous
cases included applications by members of its crew charged with fisheries offences to vary bail
conditions29 and an unsuccessful application by Olbers, the Russian company which owned the Volga,
for a stay of civil proceedings pending completion of criminal proceedings against the crew.30 In the
present case, Olbers sought a declaration that Australia’s seizure and detention of the vessel was
unlawful and an order for the vessel and its equipment to be returned. Specifically, it was submitted by
Olbers that the pursuit and seizure of the vessel was not conducted in a manner consistent with either
the FM Act or LOSC.
The case centred on the operation of s 106A of the FM Act which provides for the automatic
forfeiture to the Commonwealth of foreign vessels used in various fisheries offences within the AFZ.
Section 106 of the FM Act provides for forfeiture of a vessel following a court order. Section 106A
was introduced to the FM Act by the Fisheries Legislation Amendment Act (No 1) 1999. Prior to its
enactment there was no provision for automatic forfeiture in the FM Act.
The alleged offences concerned ss 100 (using a foreign boat for fishing in the AFZ – strict
liability offence) and 101 (having foreign boat equipped with nets, etc – strict liability offence) of the
FM Act. The Volga had not been issued with an Australian foreign fishing licence or port permit and
Olbers did not argue that the vessel had been passing innocently through the AFZ. French J found that
the Volga had engaged in unlawful fishing in the AFZ between 12-20 January 2002 even though
Australian authorities had not seen the vessel fishing in the AFZ. His determination was based on the
presence of fresh Patagonian toothfish onboard the vessel at the time of its arrest slightly outside the
AFZ on 7 February 2002, navigation tracks recovered from the vessel’s computer and evidence that
not all fishing gear had been stowed. French J found that the proper interpretation of s 106A, aided by
the title of the subdivision under which it is located (“Automatic forfeiture of things used in
offences”), was that it operates to transfer title from the owner of a foreign vessel to the
Commonwealth at the time it is used in a relevant fisheries offence. French J found that title to the
Volga transferred from Olbers to the Commonwealth in January 2002, when the vessel was used for
commercial fishing within the AFZ in breach of ss 100 and 101 of the FM Act, although the vessel
was not apprehended until 7 February 2002.31
The effect of the decision was that Olbers had no legal right to challenge the manner in which the
Volga was pursued or seized. This was because Olbers had ceased being its owner by the time the

27 Commonwealth Department of Agriculture, Fisheries and Forestry, Looking to the future: a review of Commonwealth
fisheries policy (June 2003) p 27.
28 Parliament of Australia Senate Hansard, 11 February 2004, 19896-19897, 19988-19989.
29 Lijo v Director of Public Prosecutions (Cth) [2003] WASCA 4 (Unreported, Anderson, Templeman JJ and Olsson AUJ, 16
December 2002).
30 Olbers v Commonwealth of Australia (No 2) [2003] FCA 177 (decision 11 March 2003).
31 Olbers v Commonwealth of Australia (No 4) [2004] FCA 229 at [62], [63] and [80].
(2004) 21 EPLJ 169 173 ©
Editorial commentary
pursuit was commenced on 7 February 2002. By operation of Australian law, the vessel had become
an Australian vessel and thus Australia had simply seized its own vessel.
After rejecting submissions that s 106A was unconstitutional on the basis that it provides for
forfeiture of property in the absence of judicial determination of the commission of an offence or that
it amounts to compulsory acquisition of property other than on just terms, French J noted that it:
creates a real risk for any fishing vessel owner whose boat enters the AFZ. The risk to the owner is
that, even if not apprehended at the time of any illegal fishing … or presence … in the AFZ, the boat
will leave the AFZ, with an insecure title. While apprehension may not be immediate … the
Commonwealth may be in a position to assert that, under Australian law, it has become the legal owner
of the boat. Escape to the high seas will not shed that status under Australian law or in any jurisdiction
in which Australian title will be recognised.32
The Federal Court decision delighted Senator Macdonald who immediately issued a press release
stating that the decision “supports the Government’s view that if a foreign fishing is sighted illegally
fishing in Australian waters then that vessel, its equipment and catch is automatically forfeited to the
Commonwealth and becomes the property of the Commonwealth”.33 He stated further that he will be:
seeking further legal advice on whether a number of other foreign fishing vessels sighted in the AFZ
over recent years, but not apprehended, might be able to be seized anywhere on the globe on the basis
that they are now actually Australian property having been automatically forfeited to Australia on the
actual date of the fishing in the AFZ.34
Although the Federal Court has upheld the validity of s 106A under Australian law, its validity
under international law is an entirely different matter. The Federal Court decision means, for example,
that any foreign vessel which otherwise is merely exercising rights or freedoms of navigation through
Australia’s maritime zones would automatically become owned by the Commonwealth as soon as it
enters the AFZ if, for example, it had onboard commercial fishing nets, traps or equipment that were
not stowed or secured,35 or at a time when a member of its crew engages in recreational fishing from
the vessel in the AFZ.36 This would be the case irrespective of whether Australia attempted to effect
an arrest of the vessel or even detected the commission of an offence, although, in practice, the
forfeiture provision cannot be enforced unless the vessel has been seized. Further, a vessel can only be
seized if there are reasonable grounds to believe that it has been used in a fisheries offence,37 and it is
likely to be more difficult to gain evidence of the offence to the relevant standard of proof after the
event and it is also unlikely that Australia would seek to apply the automatic forfeiture provision with
respect to technical or minor infringements of the FM Act. Nevertheless, where a foreign vessel has
been lawfully seized by Australia any remedies or rights held by its owners under LOSC (such as, for
example, with respect to its release upon the posting of a reasonable bond or other security38 or
payment of compensation for any loss or damage sustained during its arrest in circumstances which do
not justify the exercise of the right of hot pursuit)39 are now apparently unavailable if they do not
successfully contest a purported forfeiture of their vessel.40 It would thus be imperative for
pre-forfeiture owners of such vessels to use the forfeiture contest procedure to establish on the balance
of probabilities that a relevant fisheries offence had not occurred. It is to be noted that the defence of
mistake of fact is available for the relevant fisheries offences.41 However, even if it were established

32 Olbers v Commonwealth of Australia (No 4) [2004] FCA 229 at [77].
33 Ian MacDonald (Minister for Fisheries) “New chapter in maritime law: attempt to claim back the Volga rejected” (Press
release, 13 March 2004).
34 MacDonald, n 33.
35 Fisheries Management Act 1991, s 101(1)(d).
36 Fisheries Management Act 1991, s 99.
37 Fisheries Management Act 1991, s 84(1)(g)(ii).
38 LOSC, Art 73(2).
39 LOSC, Art 111(8).
40 Fisheries Management Act 1991, ss 106B – 106G.
41 The offences in the FM Act are subject to Chapter 2 of the Criminal Code (s 6A FM Act). They are stated to be offences of
strict liability (s 6.1 of the Code). Therefore, the Commonwealth does not need to prove a fault element of intention,
© 174 (2004) 21 EPLJ 169
Editorial commentary
that a fisheries offence had occurred (thus operating to forfeit the vessel), a significant disparity would
exist between the operation of Australian law and LOSC. It is unlikely that ITLOS would allow LOSC
to be interpreted in a manner that would allow Australian domestic law to operate in a way that runs
counter to the balance struck in LOSC between the rights of coastal states and the rights of fishing
nations and have the effect of rendering some LOSC provisions inoperable.
Although it was unnecessary for French J to determine whether the arrest of the Volga was
conducted in a manner consistent with the FM Act or LOSC, his Honour made a significant comment
by way of obiter dicta concerning the operation of the pursuit provisions in the FM Act. He noted the
apparent incompatibility of s 87 of the FM Act with the hot pursuit provisions in LOSC.42 Art 111 of
the LOSC provides, among other things, that pursuit of a vessel to the high seas may only be
continued “if the pursuit has not been interrupted”.43 Although s 87 of the FM Act also provides that a
pursuit may only be continued if “the pursuit was not terminated or interrupted”, this is further
qualified such that pursuit is not to be taken as having been terminated or interrupted only because the
pursuing officer loses sight of the boat44 or loses “output from a radar or other sensing device”.45
LOSC does not provide such a qualification and not only is there reason to doubt that such a
qualification could be read into Art 111, it would also seem that it is inconsistent with customary
international law requirements concerning hot pursuit.46 French J noted, but did not conclude, that the
interpretation of s 87 “must have regard to the practical exigencies of the circumstances in which
pursuit might have to be undertaken”.47 While this proposition may be supportable in terms of the
legal requirements for a hot pursuit under Australian law, it has not been specifically tested in ITLOS
with respect to the interpretation of LOSC.
An ironic and possibly unforeseen effect of the Federal Court’s decision is that it casts doubt on
the ability of Australia to enforce payments for pursuit costs from owners of foreign vessels provided
in the new Fisheries Legislation Amendment (Compliance and Deterrence Measures and Other
Matters) Act 2004. The new s 106L(2) provides that pursuit costs incurred by Australia are a debt
payable by the “owner of a foreign boat” to the Commonwealth. Following the Olbers case, by
definition pursuit costs can only commence from the time a stop order is issued and only accrue with
respect to vessels that have been used in relevant fisheries offences. As such, pursuit costs can only be
accrued when the Commonwealth owns the vessel and thus the Commonwealth would be liable to pay
itself any pursuit costs incurred.
The new process for recovering pursuit costs from owners of foreign fishing vessels and the
Federal Court’s decision to uphold the validity of a domestic law provision which operates to
automatically forfeit foreign vessels used in fisheries offences in the AFZ to the Commonwealth show
that Australian fisheries law is drifting further away from provisions in LOSC which protect various
rights of foreign owners of such vessels. However, Australia remains bound to its obligations under
LOSC (a matter that concerns both domestic legislation and judicial rulings). This is because
Australia’s sovereign rights in the areas of the AFZ that overlap with the Exclusive Economic Zone
(EEZ) (between 12 nautical miles and a maximum of 200 nautical miles from the baseline) are those
derived from LOSC itself and Australia’s ability to take enforcement action in the EEZ against foreign
vessels are limited to measures that conform with LOSC.48 This divide between Australian and
international fisheries law is only likely to be narrowed if ITLOS declares valid an exercise by

knowledge, recklessness or negligence (ss 5.1-5.6 of the Code), but the defence of mistake of fact (s 9.2 of the Code) is
available. To establish a mistake of fact a person must prove on the balance of probabilities that the person considered
whether or not facts existed, and was under a mistaken but reasonable belief about those facts.
42 Olbers v Commonwealth of Australia (No 4) [2004] FCA 229 at [97].
43 LOSC, Art 111(1).
44 Fisheries Management Act 1991, s 87(2).
45 Fisheries Management Act 1991, s 87(3).
46 See I’m Alone (Canada v USA) (1935) 3 UN RIAA 1609 and Barrett W, “Illegal fishing in zones subject to national
jurisdiction” (1998) 5 James Cook University LR 1 at 18.
47 Olbers v Commonwealth of Australia (No 4) [2004] FCA 229 at [96].
48 See LOSC, Art 62(4) and Art 73(1).
(2004) 21 EPLJ 169 175 ©
Editorial commentary
Australia of the recovery of pursuits costs provision or the automatic forfeiture provision. However,
this is unlikely – especially with regard to the automatic forfeiture provision. Australia could reduce
the prospect of a challenge before ITLOS of a purported forfeiture of a foreign vessel if it chooses to
rely on s 106 of the FM Act because it has less potential to be inconsistent with LOSC than the
(perhaps unnecessary) s 106A. This would also mean that owners of foreign vessels would have the
same legal rights under Australian law to challenge forfeiture as owners of seized Australian vessels.
It is understandable that Australia is seeking innovative ways to increase measures to deter illegal
foreign fishing to provide for more effective management and protection of its fisheries. The
management responsibilities given to coastal states in LOSC are insufficiently detailed to address the
array of issues associated with the growing problem of IUU fishing and it is logical for Australia to
develop state practice in the interpretation of the provisions in LOSC in light of the challenges
presented by IUU fishing and strengthening international resolve to eliminate it. However, the
measures that can be adopted remain constrained by various provisions of LOSC intended to
safeguard rights of owners of foreign vessels. The restrictive text of LOSC (which was drafted long
before the emergence of large scale IUU fishing) and ITLOS’s tendency to interpret its provisions in a
legalistic manner,49 continue to present a significant challenge to coastal states seeking ways to
combat the problem of illegal foreign fishing, especially in remote areas of their EEZs.
Warwick Gullett*
LLB, BA (Hons) (Monash), PhD (ANU)
Centre for Maritime Policy
Lecturer
Faculty of Law
University of Wollongong

HOW DO YOU LIKE THEM APPLES?: THE WTO AND QUARANTINE
RESTRICTIONS
In November 2003, the WTO Appellate Body (AB) ruled that Japan’s apple import restrictions to
prevent the spread of fire-blight were inconsistent with the Agreement on the Application of Sanitary
and Phytosanitary Measures (SPSA).1 The decision in Japan-Apples confirms the SPSA’s strong
focus on science as the basis for national plant protection and quarantine measures, and raises new
questions about the trade regime’s willingness to permit precautionary approaches to quarantine. It is
a portent for Australia’s strict quarantine regime which the WTO will scrutinise later this year in a
complaint brought by the EU.
Japan’s fire-blight measures
Since 1994, Japan has maintained strict controls on the importation of apple fruit from the United
States, on the stated basis of preventing the spread of fire-blight or its disease-causing organism,
Erwinia amylovora (e.amylovora). Fire-blight affects apples, pears, quince and loquat, and has spread
widely across North and South America, Europe and elsewhere. To date, Japan has been fire-blight
free.2

49 Gullett, n 12, at 407.
* I thank Chris McGrath, Erik Molenaar and Joanna Vince for comments on previous versions of this commentary. Any errors
or omissions remain my own.
1 Japan – Measures affecting the importation of apples, Appellate Body Report, WT/DS245/AB/R, 15 July 2003 (Japan-
Apples, AB).
2 Japan – Measures affecting the importation of apples, Panel Report, WT/DS245/R, 26 November 2003, ¶2.6 (Japan-Apples,
Panel).
© 176 (2004) 21 EPLJ 169